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9/24/09

"A Fondness For The Quaint Old Constitution"

George W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.

But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the "war on terror"—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.

The truth of this was borne out in the early days of Barack Obama's presidency. At his confirmation hearing to be head of the CIA, Leon Panetta said that "extraordinary rendition"—the practice of sending prisoners to foreign countries—was a tool he meant to retain.[1] Obama's nominee for solicitor general, Elena Kagan, told Congress that she agreed with John Yoo's claim that a terrorist captured anywhere should be subject to "battlefield law."[2] On the first opportunity to abort trial proceedings by invoking "state secrets"—the policy based on the faulty Reynolds case—Obama's attorney gen- eral, Eric Holder, did so.[3] Obama refused to release photographs of "enhanced interrogation." The CIA had earlier (illegally) destroyed ninety-two videotapes of such interrogations—and Obama refused to release documents describing the tapes.[4]

The President said that past official crimes would not be investigated—certainly not for prosecution, and not even by an impartial "truth commission" just trying to establish a record. He said, on the contrary, that detainees might be tried in "military tribunals." When the British government, trying a terrorist suspect, decided to use some American documents shared with the British government, Obama's attorney general pressured it not to do so. Most important, perhaps, was the new president's desire to end the nation-building in Iraq while substituting a long-term nation-building effort in Afghanistan, run by a government corrupted by drug trafficking and not susceptible to our remolding.

Even in areas outside national security, the Obama administration quickly came to resemble Bush's. Gay military personnel, including those with valuable Arabic-language skills, were being dismissed at the same rate as before. Even more egregiously, the Obama administration continued the defiance of the Constitution's "full faith and credit" clause, which requires states to recognize laws passed by other states, when it defended the Defense of Marriage Act, which lets states refuse to recognize gay marriages legally obtained in another state. Many objected when Dick Cheney would not name energy executives who came to the White House in 2002, though Hillary Clinton, as First Lady, had been forced to reveal which health advisers had visited her. Yet the Obama team, in June 2009, refused to release logs of those who come to the White House. (It later reversed itself, but only in response to a lawsuit.)

Some were dismayed to see how quickly the Obama people grabbed at the powers, the secrecy, the unaccountability that had led Bush into such opprobrium. Leon Panetta at the CIA especially puzzled those who had known him during the Clinton years. A former CIA official told The Washington Post, "Leon Panetta has been captured by the people who were the ideological drivers for the interrogation program in the first place." A White House official told Jane Mayer of The New Yorker, "It's like Invasion of the Body Snatchers."

Perhaps it should come as no surprise that turning around the huge secret empire built by the National Security State is a hard, perhaps impossible, task. After most of the wars in US history there was a return to the constitutional condition of the pre-war world. But after those wars there was no lasting institutional security apparatus of the sort that was laboriously assembled in the 1940s and 1950s. After World War I, for instance, there was no CIA, no NSA, no mountain of secret documents to be guarded from unauthorized readers, no atomic bomb to guard, develop, deploy, and maintain in readiness on land, in the air, and on (or in) the sea.

Now a new president quickly becomes aware of the vast empire that is largely invisible to the citizenry. The United States maintains an estimated one thousand military bases in other countries. I say "estimated" because the exact number, location, and size of the bases are either partly or entirely cloaked in secrecy, among other things to protect nuclear installations.The secrecy involved is such that during the Cuban Missile Crisis, President Kennedy did not even know, at first, that we had nuclear missiles stationed in Turkey.

An example of this imperial system is the Indian Ocean island of Diego Garcia.[5] In the 1960s, to secure a military outpost without fear of any interference from indigenous peoples, the two thousand Chagossian inhabitants were forcibly expelled, deprived of their native land, and sent a thousand miles away. (It is the same ploy we had used in removing native peoples from the Bikini and Enewetak atolls and Lib Island, so that we could conduct our sixty-eight atomic and hydrogen bomb tests there.) Though technically Diego Garcia is leased from the British, it is entirely run by the United States. It was the United States that expelled the Chagossians and confiscated their property. Diego Garcia has become a vast armory, as well as a storage and staging area and harbor and launch site, from which supplies and air strikes are fanned out over the Middle East, especially to the Persian Gulf and the Afghanistan and Iraq wars. No journalists are allowed to visit it. It was funded on a vast scale by various deceptions of Congress. Even the leasing terms with Great Britain were kept secret, to avoid congressional oversight.

That is just one of the hundreds of holdings in the empire created by the National Security State. A president is greatly pressured to keep all the empire's secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast, shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not not use the bomb, a modern president cannot not use the huge powers at his disposal. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.

On January 25, 2002, White House Counsel Alberto Gonzales signed a memo written by David Addington that called the Geneva Conventions "quaint" and "obsolete." Perhaps, in the nuclear era, the Constitution has become quaint and obsolete. Few people even consider anymore Madison's lapidary pronouncement, "In republican government the legislative authority necessarily predominates." Instead, we are all, as citizens, asked to salute our commander in chief. Any president, wanting leverage to accomplish his goals, must find it hard to give up the aura of war chief, the mystery and majesty that have accrued to him with control of the Bomb, the awesome proximity to the Football, to the Button.

Nonetheless, some of us entertain a fondness for the quaint old Constitution. It may be too late to return to its ideals, but the effort should be made. As Cyrano said, "One doesn't fight in the hope of winning" (Mais on ne se bat pas dans l'espoir du succès).

— September 10, 2009Notes

[1]Jane Mayer, "The Secret History," The New Yorker, June 22, 2009.

[2]Charlie Savage, "Obama's War on Terror May Resemble Bush's in Some Areas," The New York Times, February 18, 2009.

[3]John Schwartz, "Obama Backs Off a Reversal on Secrets," The New York Times, February 10, 2009. See also my recent discussion of the Reynolds case, "Why the Government Can Legally Lie," The New York Review, February 12, 2009.

[5]See David Vine, Island of Shame: The Secret History of the US Military Base on Diego Garcia (Princeton University Press, 2009). See also the review by Jonathan Freedland, "A Black and Disgraceful Site," The New York Review, May 28, 2009.